RE BHUIYAN YEASIN

CACV 242/2019

[2020] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 242 OF 2019

(ON APPEAL FROM HCAL 1183/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung given on 23 May 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 7 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 17 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 1 December 2015 illegally and was arrested by the police on 5 December 2015.  He lodged a non-refoulement claim on 10 December 2015. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 form.

4.  By a Notice of Decision dated 17 October 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 16 March 2018, the Board dismissed the appeal on 7 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.  At [53] of the Board’s Decision, the Board found that the applicant’s evidence was far from convincing.

The judge’s decision

6.  The applicant filed a Form 86 on 25 June 2018 which contained the following grounds for judicial review:

(1)  the Board unlawfully fettered his discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

7.  In his affirmation in support of the leave application dated 25 June 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was not provided earlier or with interpretation, he was confused as to what was happening;

(2)  the late provision of hearing bundle and the lack of interpretation led the Board to question the applicant’s credibility; and

(3)  the Board had significantly relied on sources of news which were not officially recognized or simply hearsay, causing the Board to speculate that it was safe for him to return.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [14] of the CALL-1 form:

“12. The applicant had appeared before me. He confirmed that his friend had explained to him the contents of the hearing bundle and the Director’s Decision before the appeal hearing and he had no problem with the Adjudicator’s questions. He had no complaint against the Adjudicator or the interpreter.

13. As the Adjudicator said in his Decision, the applicant’s claim depended on the credibility of his evidence. This is a matter for the Adjudicator who has the power of investigation. See Ali Haider CACV8/2018, [2018] HKCA 222 at §13. There is nothing amiss in the Adjudicator’s finding of the facts of the applicant’s claim.

CONCLUSION

14. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the proposed judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal dated 30 May 2019 the applicant advanced the following grounds of appeal:

“The Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  The applicant failed to comply with the direction made by this court on 27 June 2019 requiring him to lodge skeleton submissions by 28 days before the hearing date, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

12.  The hearing date on 17 September 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  The only grounds of appeal set out in the Notice of Appeal complain of errors on the part of the Board, but do not identify any error on the part of the judge. They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

14.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.